May 2010 Archives

[Continued from Legislative Outlook 2010-11 (Part 4 of 6)]

(6) Healthcare

(a) Health Bill

The main elements of the Bill are:

• To establish an "independent NHS Board" to allocate resources and provide "commissioning guidance". The coalition has said the Board's funding will be protected through "ring fenced budgets" and allocations will be weighted towards the most disadvantaged areas through payment of a "health premium". Ultimately, the plan is for local NHS organisations to then spend the allocations. They will, however, work closely with "local authorities, voluntary organisations and local business", who will be paid on a performance basis to improve public health.
  
  
• To allow GPs to commission services on behalf of their patients, apparently to cut down on administration. The coalition will also introduce new "incentives" for GPs to prioritise preventative measures.
  
  
• To strengthen the role of the Care Quality Commission and develop Monitor into an economic regulator to oversee aspects of "access and competition" in the NHS.

[Continued from Legislative Outlook 2010-11 (Part 3)]

(5) Government (continued)

(j) Office for Budget Responsibility Bill

The purpose of the Bill is to establish an independent body - the Office for Budget Responsibility - to make economic and public finance forecasts which the chancellor would have to rely on in formulating the Budget and Pre-Budget Report.

(k) Parliamentary Reform Bill

The main components of this Bill include:

• a referendum on a choice between First Past the Post and the Alternative Vote as the system for electing MPs;
  
  
• cutting the number of MPs by 50;
  
  
• redrawing constituency boundaries;
  
  
• fixed-term five-year parliaments, with the next General Election on 7 May 2015 - the Prime Minister could only dissolve parliament earlier if 55% of MPs vote in favour;
  
  
• where an MP is judged to have engaged in serious wrongdoing, allowing constituents to petition for his/her 'recall'. If more than 10% of electors sign the petition, then a by-election will be held in the seat.

(5) Government (continued)

(c) Equitable Life Payments Scheme Bill

This Bill will allow the Treasury to make payments to both present and former Equitable Life policyholders who lost money as a result of "government maladministration".

(d) European Communities (Amendment) Referendum Lock Bill

This Bill supposedly "ensures" that any future transfer of power from the UK to the EU will be subject to a referendum. The Tories have called this a 'referendum lock'. Under the doctrine of parliamentary sovereignty, however, no parliament has the power to bind its successors, and thus the Act could, theoretically at least, be repealed at any time in the future.

[Continued from Legislative Outlook 2010-11 (Part 1)]

(4) Environment

(a) Energy Security and Green Economy Bill

The final shape of this law remains unclear. The government has suggested it could "potentially":

(i) incentivise energy suppliers and households to be more efficient (e.g., by providing loans to invest in better insulation);

We've analysed Tuesday's Queen's Speech and can now provide a legislative outlook for the parliamentary year ahead.

We've divided potential legislation into 10 areas of law: (1) Business; (2) Education; (3) Employment; (4) Environmental; (5) Government; (6) Health; (7) Immigration; (8) Welfare/Social Security; (9) Tax; and (10) Transport.

Please note the emphasis on the word potential. The coalition has set a very ambitious legislative timetable - it will struggle to enact all of the bills mentioned in the Queen's Speech. Moreover, this outlook is merely intended to provide an outline of government legislation. It does not go into potential private members bills, private bills, or hybrid bills; secondary legislation; or other government legislation not mentioned in the Queen's Speech.

Part 1 of the Legislative Outlook will look at potential legislation affecting Business, Education, and Employment.

Parts 2 to 4 will focus on laws related to the Environment and the Government System.

Part 5 will analyse legislation on Health, Immigration, and Welfare/Social Security.

Part 6 will examine laws relating to Tax and Transport.

Following fast on the heels of last week's analysis of Conservative-Liberal Democrat plans for immigration, today we take a look at their proposals for family law.

1. Comprehensive review of family law: The coalition have promised a 'comprehensive review' of family law. This review will in fact simply continue the review previously announced by Jack Straw back in January 2010, which is looking at ways to avoid confrontational court hearings, encourage the use of mediation to deliver fairer and less acrimonious settlements, and provide greater access rights to non-resident parents and grandparents.

2. Protect children from excessive commercialisation and premature sexualisation: This was something that David Cameron spoke about quite a lot during the election campaign. It will be interesting to see what he comes up with in terms of concrete proposals.

3. End child poverty in the UK by 2020: This commitment is enshrined in the Child Poverty Act 2010, which was enacted by the previous government in March 2010.

The Leasehold Advisory Service (LEASE), a government-funded free legal advice service, recommends that residential leaseholders should set up a recognised tenants' association (RTA) when there are issues with management and service charges.

A RTA enables the leaseholders to speak with one voice to ensure things like adequate cleaning, routine maintenance and working door entry systems.

LEASE chief executive Tony Essien says: "It is often the case that, when they speak together as  an RTA, leaseholders can nip many problems in the bud. An RTA offers a single point of contact with those who own and manage their premises."

If leaseholders also want to embark on major collective projects like changing management, challenging service charges or even buying the freehold, then forming a residents association is the easiest way of ensuring that everyone is involved and committed before the whole process is begun.

RTAs can be set up by residential blocks of any size and have the right to:

American lawyer Deidre Clark, 44, earned £126,000 a year at supposed 'magic circle' city law firm Allen & Overy. In her spare time, Miss Clark published erotic stories on the internet under the pseudonym 'Deidre Dare' about her sexual adventures while on secondment in Russia.

In December 2008, Allen & Overy sacked Miss Clark. It claimed the stories - including 'Dances with Cossacks', 'The Discreet Charm of the Bourgeoisie' and 'Russia, With Love' - brought the firm into disrepute.

In response, Miss Clark has filed claims for sex discrimination and unfair dismissal seeking £3.49 million in damages. She alleges her boss, Tony Humphrey, 60, became "sexually obsessed" with her after they shared a kiss at an office party, but then saw her with a new boyfriend and became "infuriated".

As part of £6.5bn cuts in government spending, coalition partners David Laws of the Liberal Democrats and George Osborne of the Conservative Party yesterday announced that they intend to phase out Child Trust Funds.

My child already has a Child Trust Fund account - what will happen to it?

Aside from a solicitor, there are lots of methods that you can use to write your own will. For example, you could buy a book, a will-making kit, or software. The pitch for these products is essentially that a will is a simple legal document and that you can save yourself time and money by writing your own.

Undoubtedly some people have successfully used these types of products to write their own wills - or even written a valid will without purchasing anything at all. Equally, though, there are many stories of people who were not so successful.

Before you set out to write your own will, you might consider the following:

The government has suspended Home Information Packs with immediate effect, and says it will introduce new legislation soon to permanently abolish them.

Housing Minister Grant Shapps described the packs as "pointless red-tape" that were "strangling the housing market". Communities Secretary Eric Pickles added: "This action will encourage sellers back into the market, and help the market as a whole and the economy recover."

Jayde Cruickshank of Property Information Exchange, a company that provides home inspection information, disagrees however. "I just don't understand the rationale for this decision," he said. "I've worked in the housing market for a long time and Hips got rid of those sellers who were just putting their houses up for sale to test the market and left us instead with the serious sellers. It has also shortened the time taken to sell a property."

The Conservative - Liberal Democrats coalition unveiled its plans for immigration yesterday. In a document titled 'The Coalition: our programme for government', it promised to:

1. Implement an annual limit on the number of non-EU immigrants entering the UK "to live and work". A much-publicised Conservative manifesto pledge. The coalition has yet to agree a "mechanism" for implementing the limit, however.

2. Apply "transitional controls" for all new EU Member States. Hardly a groundbreaking announcement since these arrangements already apply to citizens of recent entrants Bulgaria, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Romania, Slovakia, and Slovenia.

3. Reintroduce "exit checks". This idea originated with the Liberal Democrats. Quite how thorough these checks will be remains unclear.

Interesting piece in the Guardian yesterday about the stampede of buy-to-let landlords rushing to sell property before capital gains tax (CGT) rises. As previously reported on this blog the new Conservative-Liberal coalition is reportedly planning to increase CGT from 18% to 40% in next month's emergency budget.

If the change is implemented, someone who bought residential property for £250,000 but can now sell it for £375,000 would have to pay £27,500 more in CGT than they would if they sold the property now.

"There has been a noticeable level of increase in the number of landlords coming to us to ask about selling their buy-to-let properties, with some choosing to actually put them on the market to try to avoid the potential CGT liability," reports Cluttons estate agent James Hyman.

Meanwhile, Savills estate agent Robin Chatwin says: "We have had someone who bought their house 18 months ago for £575,000 and has just sold for £790,000. He definitely got it away before the election because of the impending rise in tax."

The Yorkshire Post reports a Leeds employment tribunal has rejected Haley Tansey's claims of sex discrimination, sexual harassment and unfair constructive dismissal against HBOS. 

Mrs Tansey worked at HBOS for 17 years. She alleged a male colleague tricked his way into her hotel room during one business trip by telling the night porter he was her girlfriend. She said the "harassing and laddish culture" at the bank eventually left her no choice but to resign from her £39,000-a-year "dream" job due to stress.

The tribunal accepted Mrs Tansey's version of events, but said she took too long to file claims and therefore it could not award her any compensation.

Your emails contain a treasure trove of personal information about you. Under the Data Protection Act 1998, anyone collecting this data is required to tell you how it will be used and to use it only for that purpose.

If you know an organisation holds personal data about you, you can require they reveal what information they have - although they may charge you a fee to do this. If the organisation fails to comply, you can report them to the Information Commissioner.

This blog entry analyses whether or not your employer can legally monitor your emails at work. It begins by looking at your employer's duty to inform you about monitoring. It then turns to look at which emails your employer may monitor. And finally it examines your employer's responsibilities as regards data protection.

(1) Duty to inform

If your employer intends to monitor emails or internet use, it should inform you it intends to do so. This could be done in your employment contract or employee handbook, or some other kind of workplace email policy.

The policy should:

Yes. In exceptional circumstances a person can be sent to prison for failing to pay child support or taxes.

The Debtors Act 1869 abolished the Dickensian practice of forcing debtors (and their families) to languish in prison. It did, however, preserve a procedure whereby a debtor who fails to pay a debt despite having the means to do so can be imprisoned for up to six weeks.

If you fail to pay child support or taxes despite having the money to do so, the relevant enforcement authority can apply to the court for an order (known as a judgment summons) requiring you to pay. If you fail to comply with that order, the court can require you to be imprisoned for up to six weeks - essentially on the grounds that by failing to comply with the order you are in contempt of court.

Potentially, yes. Inheritance tax is due on gifts that you make during your lifetime. But there are a number of exemptions.

For example, there is no inheritance tax (IHT) due on lifetime gifts to your spouse or to charity. You also can make transfers to others of up to £3,000 or small gifts of up to £250 without IHT liability (although you cannot combine those two exemptions). You can also make certain gifts in consideration of marriage and pay for insurance policies that are written in trust without incurring IHT liability.

In addition, you can make gifts outside those exemptions, which are known as "potentially exempt transfers".

Conduct of arbitration proceedings

As mentioned in Part 1, different arbitration organisations apply different rules, but there are some provisions that all abide by. The Rules of the London Court of International Arbitration (the "LCIA Rules") are often used for commercial arbitration, and are a good example of rules that have been tried and tested.

Parties to disputes sometimes elect to resolve matters by arbitration rather than court action. Indeed, frequently commercial contracts specify that the parties must resolve disputes by arbitration.

For those unfamiliar with alternative dispute resolution, arbitration means an impartial and independent third party decides how to resolve the dispute. In most cases, the arbitrator's decision is binding and cannot be challenged.

To many of you, arbitration may sound a heck of a lot like court. The key difference is that arbitration usually takes place behind closed doors and the arbitrator's decision must remain secret unless the parties agree otherwise.

Why choose arbitration over litigation?

[Continued from 10 Questions To Answer Before You Start A Business]

11. What physical premises does the business need?

Some businesses, such as retail shops, will be strongly identified with their premises. Others - such as a machine tool fabricator - will need specialised premises capable of handling their operations. What will your business need? Where are you likely to find the right business premises, and how much are they likely to cost?

12. What will be the up-front costs of securing business premises?

Landlords often require deposits and there may be a variety of fees. You will want to take these into account in budgeting for start-up costs.

13. What health and safety regulations will affect the business?

Virtually all businesses are affected by health and safety regulations to some extent. Labour-intensive businesses, and particularly those involving physical labour, will likely present a range of health and safety issues and may be subject to regulation compliance inspections. You will need to determine how you will ensure compliance, and how much it will cost the business to do so.

14. Will supplier relationships be crucial to the business?

Before, during, and after you start a business, supplier relationships can be critical for several reasons. For instance, if you're planning to use a particular software package in a way that is central to the operation of the business, you will want to ensure that the supplier will stand behind the product and provide adequate support. In manufacturing businesses, the price and credit terms for raw materials may make the difference between a reasonable profit margin for your business and a loss.

We've been racking our brains here at FindLaw in recent days thinking of the top questions budding entrepreneurs need to address before they start a business. You'll find questions 1-10 copied below, alongside explanations about why they're important.

We'll publish another installment in a couple of hours, so watch this space!

Before the election, this blog sought to cut through the spin to analyse each of the major parties' positions on tax.

Now the ballot papers have been counted and things are beginning to settle down, this entry looks at the Conservative-Liberal Democrat coalition's tax policies, where they've been announced - and makes a few predictions where they have not:

Long-suffering readers of this blog may remember that last November I wrote a number of entries about Jordan Wimmer's £4million case for sex discrimination, unlawful deduction of wages, unfair constructive dismissal, and disability discrimination against sexist city-slicker Mark Lowe.

Canadian Wimmer, 29, claimed Lowe branded her a "bimbo", a "stupid blonde," "only decorative", and forced her to quit her £577,000-a-year position as a marketing executive paid to persuade the rich to invest in hedge funds.

Wimmer produced one email in which Lowe asked her whether an internship candidate was "cute" or "blonde." She also alleged Lowe, founder and owner of the Mayfair-based firm Nomos Capital, forced her to attend a lap dance club and invited escort girls to business meetings.

But these allegations paled in comparison to one claim that he'd hired a Russian hitman to kill her.

While Lowe conceded he sent sexually explicit emails to female employees (some comparing women to dogs, expensive cars, sheep and corrosive chemicals, and including graphic references to sexual acts), hurled a number of insults at Wimmer, and said he had a "marked preference" for female sales staff (which he justified as "pure commercial sense"), he denied claims that he'd hired an escort or someone to assassinate her. He also denied accusations that he made sexual advances towards Wimmer, saying he always treated her "in a gentlemanly way" - aside from a few sexist comments, of course.

After a six month wait, an employment tribunal in central London yesterday issued its judgement last week.

First, a dramatic election night and a hung parliament; then, rumours of a Rainbow Coalition; swiftly followed by Gordon Brown's resignation; and finally the formation of a formerly unthinkable government comprising rightwing Conservative MPs and centre-left Liberal Democrats.

Now comes another frankly shocking story involving 63-year-old David Hoffman of Bow in east London.

On polling day last Thursday, Mr. Hoffman received a call from five burly police officers. They'd received a complaint from one of his neighbours about an 'offensive' poster in his window. The poster showed a photograph of David Cameron with the word 'wanker' printed underneath.

The police told Mr. Hoffman to show them ID. As he turned away to retrieve his wallet, the officers stormed his home, corralled him into his living room and promptly handcuffed him. You can watch and listen to his account of the incident on the Guardian website.

Stamp Duty Land Tax (SDLT) was introduced in December 2003 and replaces the old stamp duty on purchases of flats, houses and other land and buildings. SDLT is payable on the purchase or transfer of property or land in the UK where the amount paid is above a certain threshold. Higher percentage SDLT rates apply to higher-value transactions and can also vary depending on whether the property is being used for residential or non-residential purposes, and whether the property is sold as freehold or leasehold.

What are the current SDLT rates and thresholds for freehold residential property?

You can pursue your claim for wrongful dismissal either in the civil courts (i.e., the county court or the high court) or before an employment tribunal.

Going to an employment tribunal

To commence an action with an employment tribunal, you must file Form ET1 within three months of your last day of employment.

One advantage of using an employment tribunal is that a claim for wrongful dismissal can be dealt with at the same time as other complaints, such as unfair dismissal or sexual discrimination. Claims to employment tribunals also tend to get resolved quicker than claims made in the civil courts.

An employment tribunal cannot award more than £25,000 in damages for wrongful dismissal, however. There is no such restriction in the civil courts. Moreover, you must comply with the three-month time-limit in filing your claim. You have much more time to file a claim in civil court - six years.

Going to court

The 17-year battle between U.S. oil giant Chevron and the people of Ecuador returned to the news this week. For those unfamiliar with the story, for nearly two decades 30,000 Ecuadorians have been fighting a $27billion (£17billion) lawsuit against the company.

They claim their land, rivers, wells, livestock and own bodies were poisoned after 68billion litres of toxic waste water was illegally dumped in the Amazon rainforest between 1972 and 1990.

The Guardian reports many environmentalists liken the dumping, which has allegedly caused an "epidemic of diseases" such as leukaemia, to the Chernobyl disaster.

Chevron denies any liability, however. A ruling is expected within two months.

Main Steps in a Personal Injury Claim

Returning to these shores for a moment, perhaps you're wondering how one would go about making a personal injury claim. Well, here are the main steps:

As this tired blogger heads to bed, 610 seats have declared out of 650, and the UK is facing up to an hung parliament.

What does a 'hung parliament' mean?

A hung parliament simply means no party has won an outright majority of seats - namely, 326 or more of the 650 available.

Who came closet to securing a majority?

David Cameron's Conservative and Unionist Party came closest. They look set to secure 36% of the popular vote, which under the first-past-the-post voting system translates to a disproportionate 47% share of seats in the House of Commons (c. 305).

The BBC have forecast their nearest challenger, the Labour Party, will win 28% of the popular vote and 41% of Commons seats (c. 265).

The Liberal Democrats meanwhile will win around 24% of the popular vote, but only 8% of seats (c. 55).

The other parties/candidates (i.e., the Green Party, Scottish Nationalist Party, Plaid Cymru / Party of Wales, Social Democratic and Labour Party of Northern Ireland, Sinn Fein, Democratic Unionist Party, and independent unionist Sylvia Hermon) will hover up the remainder of the popular vote (c. 12%) and seats (c. 4%).

So who's Prime Minister and who forms the government?

The polling stations have opened, but around 40% of you are undecided or unsure whether or not you'll vote.

Many of you think there is little to separate the main political parties.

The Election 2010 blog series seeks to challenge that assumption head-on.

With only a day to go until the election - don't forget to vote everyone! - this entry compares the major parties' proposals for property:

Yesterday, we looked at David Cameron's obfuscation during Thursday night's televised leadership debate where he refused to answer whether or not he intended to place a cap on the number of EU citizens moving to the UK.

Today, we turn to his position on corporation tax. You may remember that Gordon Brown said the Conservatives plan to cut the tax from 28% to 25% to help big business - particularly big banks.

During Thursday night's televised leadership debate, Nick Clegg repeatedly asked David Cameron to answer the following question on immigration:

- "Would your cap on the number of immigrants entering the UK have any impact on people coming here from the EU? Yes or no?"

David Cameron successfully ducked the question once or twice, but eventually responded, albeit rather hastily:

- "Yes, yes, it would be affected by transitional controls..."

In so answering, Mr. Cameron seemed to suggest that he could limit the number of EU citizens coming to the UK through "transitional controls" applied to the so-called A8 countries (i.e., Czech Republic; Estonia; Hungary; Latvia; Lithuania; Poland; Slovakia; and Slovenia).

Pursuant to EU law on free movement of workers, however, these transitional arrangements will automatically expire on the seventh anniversary of the countries' accession to the EU.

A former firefighter who endured years of abuse at the hands of sexist colleagues at a village fire station in Hampshire will receive compensation as part of an out-of-court settlement, BBC News reports.

Kate Ellis, 47, claimed fire crew "singled her out" as the only female firefighter working at Kingsclere Fire Station. Watch manager Mark Butler, in particular, resented having a woman in his team. He banned her from driving the station's fire engine and openly bragged to subordinates that he didn't have six crew members his fire engine but "five plus one."

'Childhood dream'

Mrs. Ellis told BBC News that she fulfilled "a childhood dream" on joining the fire brigade in 2003. She even featured on posters encouraging women to apply to become a firefighter. She said: "I wanted to do a worthwhile job that I could be proud of, [instead] I was singled out and isolated.

"I spoke to crew managers, watch managers and group managers who just didn't listen to my concerns."

'Notch on his bedpost'

Newbury Today reports Ms. Ellis even agreed to sleep with Butler to end the cycle of sexual harassment. She told an employment tribunal in Reading that she felt if she became "a notch on his bedpost" he might start to treat her more fairly.

One of Ms. Ellis's colleagues, Ray Mace, told the tribunal: "Mark Butler took advantage of the fact she was a woman. He treated her as if she was worthless."